E v Police HC Nelson CRI-2010-442-10 [2010] NZHC 974 (22 June 2010)

Last Updated: 16 January 2017

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

_{CRI-2010-442-10}

E

v

NEW ZEALAND POLICE

Hearing: 22 June 2010

Appearances: Applicant appears in person

Mr Stevenson for the respondent

Judgment: 22 June 2010

_{JUDGMENT OF MALLON J}

[1] Mr E appeals against his conviction and sentence on a charge of careless driving (s 37(1) of the Land Transport Act 1998).

[2] The incident which gave rise to the charge occurred on 5 March 2010. Mr E was driving south on State Highway 1 near Blenheim. The road was under construction at the time. There was loose gravel on the road. Mr E lost control of his car and ended up off the road. His car caused damaged to a fence and gate off to the left hand side of the road. The police summary of facts states that the area at the time was governed by a temporary 50 Km/h limit “which was clearly sign posted appropriately” and that Mr E had been travelling at approximately 70-

_80Km/h.

E V NEW ZEALAND POLICE HC NEL CRI-2010-442-10 22 June 2010

[3] Mr E initially indicated that he would plead guilty to the charge. He signed a form with that indication on 30 March 2010. As a result of that indication the file was transferred from the District Court at Blenheim to Nelson.

[4] On 7 May 2010 the charge came before the Justices of the Peace at Nelson. Mr E advises me that on this day he first saw the duty solicitor who advised him to plead guilty but with exonerating circumstances. He advises me that, despite this advice, when he came before the Justices of the Peace he had decided that he wanted to tell them what had occurred and for them to make the decision as to whether he was guilty. He says that the Justices of the Peace wrongly assumed he had already pleaded guilty and proceeded to convict him without hearing from him.

[5] Unfortunately the first few minutes of the hearing before the Justices of the Peace do not appear to have been recorded. The transcript starts a few minutes into the hearing. It begins with Mr E discussing the insurance situation in relation to the damaged fence. It then records the Justices of the Peace as noting that Mr E had pleaded guilty. The conviction is entered and a fine of $500 and court costs of $130 are imposed. There is then a discussion in which Mr E says that he cannot afford to pay the fine and court costs.

[6] Mr E advises that he had wanted to explain to the Justices of the Peace that the position of the temporary sign made it difficult to see and further that he does not believe he was doing 70-80 Km/h. He says that if his conviction appeal is allowed and it is referred back to the District Court for rehearing he will plead not guilty and give his evidence about the location of the sign and his speed.

[7] Mr Stevenson, for the respondent, says that there appears to be facts to support the careless driving conviction but this is on the basis of the summary of facts which Mr E has put in issue. He concedes that if Mr E has correctly stated what occurred – that is, that he did not plead guilty and that he intended to plead not guilty (and Mr Stevenson says that he has no basis for contesting this), then Mr E is entitled to plead not guilty and to have the matter determined on the evidence. He concedes that the matter should be referred back for

rehearing. He notes that the hearing would be in Blenheim as the Court closest to where the alleged offending took place.

[8] Mr E would prefer to have the hearing here in Nelson but remains of the view that he would like the opportunity to defend the charge even if the hearing has to be in Blenheim.

[9] In these circumstances I quash the conviction on the careless driving charge and refer the matter back to the District Court for rehearing. I leave it to the District Court to determine, in accordance with the applicable rules, where the hearing is to take place, noting that Mr E ’s preference is for a hearing in Nelson and the respondent’s submission that it must go back to Blenheim.

[10] As explained to Mr E , because I have quashed his conviction I do not deal with his sentence appeal. I did, however, intimate that the fine appeared to be within the available range on such a conviction. Mr E explained his financial position to me and why he says he cannot afford to pay a fine and would be prepared to do community work instead. I explained to him that if he is convicted following his defended hearing then he would need to make those submissions at that time.

Mallon J

Solicitors:

C Stevenson, Pitt & Moore, Nelson, email: [e-mail]

Copy to:

Mr Norman E , Nelson